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The public doesn’t know exactly what the Berkeley City Council voted on at last Thursday’s closed-door session. And it doesn’t know how each elected official voted.

The closed-session meeting was called to discuss a possible appeal to the decision by Judge Barbara Miller against the city over the construction of an athletic center next to Memorial Stadium, which is traversed by an earthquake fault.

An open session where some 70 people addressed the council—several dozen were turned away due to time constraints—preceded the executive session.

After the closed-door meeting, Mayor Tom Bates announced in a terse public statement that the council “decided not to take action.”

Had the council made an affirmative decision, either voting to appeal the lawsuit or voting not to appeal it, it would have been required to disclose the precise decision and the council vote, according to Acting City Attorney Zach Cowan.

Some members of the public are angry about constraints placed on the information revealed about the closed-door vote and also object to two other limitations placed on their input into the discussion of an appeal. One was the public not getting access to a letter sent to the council by the university outlining a settlement, a letter received by councilmembers earlier that same day.

The other was the issue of disallowing full public comment on the question of an appeal. The meeting was held in the Council Chambers which limited the number of people present at the meeting.

The number of people who could comment was also constrained by scheduling the public portion of the meeting so that it ran directly into a 7 p.m. zoning board meeting.

Disclosing the decision

Attorney Peter Scheer, executive director of the California First Amendment Coalition, said he had to concur with what he said was Cowan’s “technically right” interpretation of the Brown Act, the state’s open meeting law, which says that the City Council is not required to reveal a vote when a decision is not made. [See Section 54957.1(a)(2))] [www.cfac.org/Law/BrownAct/Text/ba_text.html]

“The language [of the statute] is odd, ambiguous,” Scheer said, wondering whether it could be a drafting error in the law. “We’re stuck with the literal language—it is defensible,” he said.

So, if the council voted on the question of whether to appeal Miller’s ruling against the city, there would have to be five affirmative votes for the city to be obligated to reveal exactly what the council was voting on and who voted in what way.

Scheer told the Planet that if members of the council revealed either their own votes or how others voted, they could be accused of abusing attorney-client privileges. However, Scheer said, the City Council could also vote to reject the city attorney’s advice and make the vote public. Cowan concurred.

Former Mayor Shirley Dean, who will face Bates in the November elections, was among those who criticized the council for not revealing particulars of the vote.

“It’s important to know where each councilmember stands,” Dean said. “It should be part of the public record.”

Citizens should know how their councilmembers voted and be able to call them and ask them to explain the reasoning behind their vote, open government activist Gene Bernardi told the Planet.

Bates did not return calls for comment.

The letter

Another question members of the public are asking is why a letter from the university to the council regarding the lawsuit—which many assumed the council discussed in closed session—was not made available to the public so that people could address the questions raised by it before the closed session.

Once correspondence from the public goes to a City Council majority that correspondence becomes a public document. Cowan told the Planet the public should have gotten copies of the letter, but said it was up to the city clerk’s department to make that happen.

Acting City Clerk Deanna Despain called the lapse a “clerical error,” given that her staff had brought to the meeting only enough copies for the City Council and a few extras that had been left on the clerk’s table.

“I don’t know who got them during the craziness of all that,” Despain said, referring to the crowded meeting, which was kept orderly by some six to eight uniformed police officers.

City Manager Phil Kamlarz backed up the clerk. “We just got the letter a few hours before the meeting. Deanna got jammed,” he said.

Kamlarz said this was not a Brown Act violation and played down the importance of the university’s letter in the overall discussion.

“It was not critical—a lot of stuff was put out already,” Kamlarz said. “It’s just a question of logistics.”

The letter was given to members of the public by Councilmember Kriss Worthington, who made copies at his council office after the meeting. The press and public asked for it after the mayor had disclosed its existence in a press briefing after the open session announcement.

Michael Kelly, president of the Panoramic Hill Association said, contrary to Kamlarz’ belief, he thinks not giving the letter to the public before the public comment period was a critical error. The Panoramic Hill Association was one of the three entities, including the city and the Oaks Foundation, that sued the university. The Panoramic Hill Association and the Oaks Foundation have filed an appeal and encouraged the city to do so as well.

While the university letter recapitulates a number of concessions the university had already offered, including reducing the number of parking spaces for the project, reducing the number of events at Memorial Stadium, replacing trees eliminated by the project and creating an emergency access road in the Panoramic Hill area, it strongly advised the city not to appeal.

The letter says that these “positions”—the reduced number of parking spaces, etc.—are “contingent on the city’s agreement not to file an appeal to the current litigation and not to file any future legal challenge to the Memorial Stadium project.”

Kelly told the Planet there were issues he would have wanted to raise with the council based on the letter, which also addresses an accelerated schedule for rehabilitation of the stadium.

“These issues weren’t revealed to those of us who wanted to speak” at the open session, Kelly said.

Kelly said had he known about the letter, he would have been able to address its contents when he spoke to the council. “The reality is that in the city, there are citizens who have been paying attention to the project and understand it better than the council. I’ve spend the last two and a half years of my life working on it” he said.

Public comment cut

The public is permitted to address every item of every council meeting, including closed sessions. However, there wasn’t an opportunity for everyone who had come to speak to the council to do so.

The mayor called the special closed session meeting in the City Council Chambers at 5 p.m. on Thursday, just two hours before the zoning board was scheduled to meet there.

The open council session was therefore scheduled to end at 6:55 p.m.

Hundreds of people showed up, many of them desiring to speak. Several dozen people were waiting their turn to speak at 6:30 p.m. The mayor took a 10-minute break at which time he directed those in line to fill out cards and put them in a drum, from which people would be chosen to speak in the remaining 15 minutes of speaker time.

“The mayor cut off a whole group of people,” Dean said. “We don’t know what those people were going to say—that bothers me.”

Further, Dean said she thought the meeting should have been moved to a place where the large crowd could be handled—people lined up outside the council chamber and rotated in. “It needed to be in a place that could handle the crowd,” she said.

City manager Phil Kamlarz said there is no other venue in the city that can hold a large crowd and where the meeting can be televised. (He noted that city staff was looking at the possibility of moving the Council Chambers permanently to the adult school.)

Further, Dean pointed to the two instances during the meeting where Worthington asked to be recognized so that he could pose a question to one of the speakers.

One of those instances was when Worthington wanted to ask Michael Kelly his estimate of the cost for an appeal—information he wanted to have for the closed door discussion, he told the Planet later—but the mayor refused to recognize him.

“Questions from councilmembers are always allowed,” Dean said. “I don’t believe the mayor had the right to say, ‘I don’t see you.’”